State v. Schlosser

• Decision Date: 16 January 1914
• Citation: 89 A. 522,85 N.J.L. 165
• Parties: STATE v. SCHLOSSER et al.
• Court: New Jersey Supreme Court

89 A. 522

85 N.J.L. 165

STATE

v. SCHLOSSER et al.

Supreme Court of New Jersey.

Jan. 16, 1914.

Error to Court of Quarter Sessions, Essex County.

Henry Schlosser and John Seibert were convicted of keeping a disorderly house, and bring error. Affirmed.

Argued June term, 1913, before GUMMERE, C. J., and PARKER and KALISCH, JJ.

Andrew Van Blarcom, of Newark, for plaintiffs in error. Frederick R. Lehlbach, of Newark, for the State.

KALISCH, J. The plaintiffs in error, the defendants below, were indicted for keeping a disorderly house in the city of Newark, and convicted of the offense charged. The case comes up for review on a strict bill of exceptions, and also under the 136th section of the Criminal Procedure Act (2 Comp. St. 1910, p. 1863).

The first point made by the plaintiffs in error in their brief and relied upon as a ground for reversal of the judgment is that there was no evidence to sustain the charges in the indictment.

Under the settled law of this state, the court will not review the evidence as to its weight, or whether it justified the verdict, or whether it would leave a reasonable doubt as to the defendants' guilt. Reid v. State, 62 N. J. Law, 721, 41 Atl. 920; State v. Lang, 75 N. J. Law, 8, 66 Atl. 942; State v. Herron, 77 N. J. Law, 523, 71 Atl. 274; State v. Egan, 87 Atl. 456.

But it is contended that the court will review the evidence to ascertain whether it sustains the charge in the indictment. In State v. Jaggers, 71 N. J. Law, 281, 283, 58 Atl. 1014. 1015 (108 Am. St. Rep. 746), Magie, Chancellor, speaking for the Court of Errors and Appeals, in considering the effect of the 136th section of the Criminal Procedure Act, said: "The provision for review of a denial of a motion to discharge or direct a verdict of not guilty, which is addressed to the discretion of the court, brings into review only the question whether, upon the evidence as it stood when the motion was made, there was a case for the jury. An examination of the evidence returned with this writ satisfies us that it was sufficient to justify and to require its submission to the jury." But an examination of the record in the case under consideration does not disclose that any motion was made by the defendants for a direction of a verdict in their favor, upon the ground that the evidence was insufficient to sustain the charge contained in the indictment, but that there was a motion made for a direction of a verdict on behalf of Henry Schlosser, one of the defendants, on the sole and distinct ground that Schlosser was not the owner or manager of the premises and did not participate in any of the acts charged, and that the license was issued in the name of John Seibert, the codefendant, and that he was the man actually engaged in the transaction of the business. Thus it is obvious that the question as to whether the evidence adduced at the trial was sufficient to constitute a disorderly house was not raised at any time by the defendants in the court below, and is raised for the first time in this court, and therefore it cannot be considered on the assignment that the court refused to direct a verdict for the defendants.

Since it appears, however, that a general exception was taken to the judge's charge, and that there is assigned as error a portion of the court's charge, as follows: "But these facts, which I have alluded to, and the additional fact that they were both there, according to the state's testimony, and had an opportunity of observing what went on there is sufficient, if you believe that they were responsible for this condition of affairs, to justify a conviction, provided, of course, that you believe the state's witnesses"—this suffices to raise the question whether there was any evidence tending to establish the guilt of the defendants. The exact point made by the defendants is that all the acts proven in the case fail to bring it within any one of the acts denounced in the indictment as disorderly, and hence it is argued that applying the rule laid down in Linden Park Horse Ass'n v. State, 55 N. J. Law, 557, 27 Atl. 1091, there could not have been a legal conviction under the Indictment.

In the case referred to, the indictment was in the common-law form of keeping a bawdyhouse, whereas the particular disorder relied on by the state was habitual gambling on horse races on the premises. The word "gaming" was omitted from the indictment, and the Court of Errors and Appeals very naturally held that none of...